Supreme Court Takes On Ten Commandments

NEW YORK – More than a year after an Alabama justice lost his job over a Ten Commandments (search) display, the U.S. Supreme Court (search) on Wednesday revisited the politically thorny issue for the first time in more than two decades.

The court, which in 1980 ruled that religious displays did not belong in public schools, will now decide if displays on government property also violate the First Amendment (search). Specifically, the justices will consider a Ten Commandments monument in Texas and framed copies of the Commandments in two Kentucky courthouses.

The two cases — Van Orden v. Perry (search) and McCreary County v. ACLU (search) — went in opposite directions in lower courts, as have most challenges involving religious displays in public settings.

In the McCreary County case, the U.S. Court of Appeals for the 6th Circuit affirmed a lower court's finding that the display in two Kentucky courthouses and a school district of copies of the Ten Commandments violated the Establishment Clause (search) of the First Amendment, which prohibits government from anointing an official religion or showing preference for one faith over another.

The 5th Circuit Court of Appeals, however, found no such violation in the monument to the Commandments on the grounds of the state capitol in Austin, Texas.

The nine justices who will examine these cases have in the past been emphatic about not allowing religion to be forced on public schools. The decision on the Ten Commandments, however, is expected to be razor close.

The court declined to hear a similar case in 2001, and in its dissent, Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas wrote that the Commandments also have "secular significance ... because they have made a substantial contribution to our secular legal codes."

The attorneys arguing to allow the display of the Commandments on government property were quick to jump on that point.

"The idea of having a fence around the Ten Commandments to make clear the state has nothing to do with it, I think that is bending it too far," acting Solicitor General Paul Clement told the justices on Wednesday.

"Countless monuments, medallions, plaques, sculptures, seals, frescoes, and friezes — including, of course, the Supreme Court's own courtroom frieze — commemorate the Decalogue. Nothing in the Constitution requires these historic artifacts to be chiseled away or erased," wrote Texas Attorney General Greg Abbott in his court filing.

But David Friedman, an attorney for the American Civil Liberties Union (search), countered: "An assertion that the Ten Commandments is THE source, THE foundation of our legal system ... that is simply wrapping the Ten Commandments in the flag, and that's endorsement."

And Erwin Chemerinsky, a lawyer representing a man in the Texas case, insisted that the Commandments monument is a "religious symbol" that "does promote religion."

The justices have a perplexing task ahead of them. Many historical and educational exhibits as well as works of art contain religious imagery and can be found in municipal buildings, museums, schools and courthouses across the country.

Eliot Mincburg, legal director of People for the American Way (search), admitted that in some cases the display of religious symbols in public spaces was perfectly fine.

But while it "makes sense to realize they can be a display for historical and other purposes, the notion that the Ten Commandments in and of themselves are not a religious message" was disingenuous, he said.

Advocates descended on Washington to rally for their side on Wednesday, one night after some held candlelight vigils outside the Supreme Court building. More than 50 groups have filed "friend-of-the-court" briefs weighing in on the issue.

"The Ten Commandments is the very basis of our law. Thou shalt not steal, thou shalt not kill, thou shalt not covet, thou shalt not falsely testify against your neighbor — that is the very basis of all law," the Rev. Rod McDougal told FOX News at a rally outside the Supreme Court building.

Gregg Easterbrook, author of "The Progress Paradox" and a visiting fellow at the Brookings Institution, said arguments like those lacked an accurate historical perspective.

"One can say the concept oflaw-giving in Western thought comes mainly, though not exclusively, from the Bible," he told Foxnews.com. "But the structure of the Constitution had to do with asserting individual people's right to give law, as opposed to the divine right of kings."

Easterbrook, a former senior editor at Beliefnet.com, pointed to the reasons Europeans crossed over to America in the first place: The Founders rejected their rulers' claims that they were accountable to no one but God.

"The Founders thought power should be derived from the informed consent of the governed," which forms the basis of modern-day democracy, Easterbrook said.

"The greatness of this country is we have 2,000 religions here, 20 million non-believers, and we all live in relative peace. We have the right to express ourselves in public and in private," said Barry W. Lynn, executive director of Americans United for Separation of Church and State (search).

Lynn, an ordained minister, told FOX News the Founding Fathers would have been "very disappointed" to have seen their work as an endorsement of one form of Christianity above all others.

"The Constitution does not mention God," Lynn said.

But, countered former Alabama Justice Roy Moore (search), "The Constitution would not exist without the laws of God.

"We have to explicitly recognize that religious liberty comes from God. Without recognition of God, there would be no First Amendment," he told FOX News.

Moore helped spark a renewed fervor over church and state issues two years ago when he defiantly refused to remove a giant, 5,300-pound granite replica of the Ten Commandments tablets from his courthouse.

The judge had helped move the monument into the building in the dark of night four years ago. On Nov. 13, 2003, a judicial panel banished him from the bench because he defied a federal court order to remove the tablets.

Moore on Wednesday insisted there was "nothing wrong with acknowledging the sovereign God upon which this nation was founded," dismissing the notion that religious displays were inappropriately coercive.

"It's very difficult to secularize those commandments that deal with 'the lord thy God,'" Smolla, dean of the University of Richmond School of Law, told FOXNews.com. The attorneys representing the Texas and Kentucky municipalities had argued that the displays honored the history of American culture and law.

"There is no doubt religion has been a powerful influence on the law, and that a large part of our legal principles have evolved from the moral precepts of the world's great religions," Smolla said. "But while the law may draw from religious history, the law is itself secular."

Still, most Americans seem not to have a problem with public religious displays. An AP-Ipsos poll taken in February found that 76 percent supported the displays, and 23 percent opposed them.

The Bush administration has also not been shy about where it stands, having actively backed an effort to keep "God" in the Pledge of Allegiance (search). The administration has indicated its support for the Ten Commandments displays.

In the Texas case, Thomas Van Orden lost his lawsuit to have a 6-foot granite monument removed from the state Capitol grounds.

The Fraternal Order of Eagles (search) donated the exhibit to the state in 1961, and it was installed about 75 feet from the capitol. The group gave thousands of similar monuments to American towns during the 1950s and 1960s, and those have been the subject of multiple court fights.

Two Kentucky counties, meanwhile, hanged framed copies of the Ten Commandments in their courthouses and added other documents, such as the Magna Carta (search) and the Declaration of Independence (search), after the American Civil Liberties Union challenged the display.

While one lower court found the Texas display to be predominantly nonreligious because it was one of 17 monuments in a 22-acre park, another court struck down the Kentucky displays as lacking a "secular purpose." Kentucky's modification of the display was a "sham" for the religious intent behind it, the Cincinnati-based 6th U.S. Circuit Court of Appeals ruled.